Life is not black and white, but shades of grey, and there are a lot of shades of grey. No one gets everything they want; most things are a negotiation. I know, whether or not one ultimately dies is not negotiable, but the timing and method often are. Here in the Trenches, we spend the majority of our days navigating around the shades of grey, because contrary to popular belief, nothing in the law is a certaintly or a slam dunk. There are always multiple ways to view a set of facts, and to interpret a case or a statute. Lawyers are trained to see everything as grey, and because we know the realities of the legal system, we're used to it. Clients, not so much. When a client enters the Trenches, they think in terms of legal rights and what's "fair." "Fair" is not a thing, it is a feeling. What clients don't see is that what's "fair" in any given situation depends on who's looking at it, and that no two people see any set of facts the same way. Same thing with the law. Also, clients tend to see what's "fair" as the ultimate test of whether a settlement is acceptable. Here in the Trenches, a sense of fairness is but one test of whether any settlement is acceptable. We also look at:
1. The interests and needs of the parties and any others affected by the settlement;
2. The impact on the relationship of the parties moving forward;
3. The law and the principles underlying the law;
4. Practical and economic realities of the settlement; and
5. Any agreements the parties have reached in the past.
You can't view "fair" in a vacuum. Resolving a legal dispute is a careful balancing act of competing needs and interests of everyone affected, of which a sense of fairness is only one part. If you only see a win or a loss and nothing in between, you're not seeing the grey and you will never be satisfied with any result, because grey is all we have - here in the Trenches.
Let's turn again to lies. Most of them are just plain unnecessary. This week, not one but two other attorneys have lied to me. Not big lies, not lies of any real import. They weren't lies that even mattered in the real scheme of things. They were both lies concerning what the attorney did or didn't do, and whose idea it was for a given course of action. Neither attorney knew I was aware of the lies, and neither of the lies were substantive. They were lies designed to make the attorney look good, or at least not bad, in my eyes. I don't know about you, but I usually figure a lie will be discovered and the truth will come out. What happens in that event is something about which I obsess. (It is also why they pay me the big bucks here in the Trenches.) So, I know these two attorneys lied. I have to tell you, it made lose respect for them, and it also made me wonder what else they would lie to me about. I mean, if someone will lie to you when it doesn't matter, won't they lie to you when the stakes are higher? Even before legal knowledge and skill, trustworthiness and reputation are the most important attributes an attorney has. These two attorneys just lost that. I understand that sometimes someone is mistaken, and that's forgiveable. This was not that. Moral of the story? Don't lie. It will come out and it will bite you, and maybe not in the way you think. These two attorneys will discover that, maybe not today, but they will. I'm disappointed, but not surprised - here in the Trenches.
Well, still lots of stress here in the Trenches, but I've gotten a lot of things off my plate in the last week. Another thing that's off my plate, or at least beginning to get off that plate, is one item on my Bucket List - the Disney Princess Half Marathon. I love Disney and I love running, so the combination is a natural. What could be better than running through Disney World? The two big questions were 1) When? and 2) Costume or no? In other words, do I go with the spirit of the race and dress as a Disney Princess, or just run the race? Well, it might be Office Testosterone and my Dad, or it just might be that I have had far too little silly fun in my life, but "costume" won (Yes, I will post pictures, but the race is next February (that's the "When"), so I'm hoping you all forget about it by then!). So, the pattern and the fabric for the Belle costume are wending their way to me as we sit here. The next question is whether any of you have even started your Bucket List, much less started to work on it. Life here in the Trenches for a client is not a permanent thing. Life goes on, and it's too short to dwell on the things that go wrong, especially when they are things you can't change. I am by no means trivializing what happens to clients when they end up in the Trenches, but what I am saying is that the Trenches is just one stage in a client's life. Whether it is the stage that defines who the client is for the rest of their life, or simply a place to pass through on their way to that life, is up to the client. So, which is it for you?
No, it's not a superhero; it's my Aunt Bernadette, "Pebbles" to her family. Here in the Trenches, we talk a lot about high emotions, and high conflict people. What high conflict people usually have in their lives are people who reinforce their high conflict behavior. Bill Eddy calls those folks "Negative Advocates." (Contrary to popular belief, I am not on Bill's payroll or otherwise compensated by him. I just love the non-judgmental way he views some of my most longstanding clients) Here in the Trenches, we are well acquainted with the Negative Advocate. It's the person who second guesses our advice to our client. It's the person who tells them that they're perfectly justified taking an unreasonable position, the friend who only sees their side of the dispute. This is how Bill Eddy describes them:
First of all, let me explain the term “negative advocate,” because I believe it can apply to anyone, and probably all of us have occasionally been negative advocates. The term I use is comparable to an enabler with an alcoholic or an addict, where an enabler is someone who goes around fighting for the disease rather than the cure. And so, people are familiar with that term, or “co-dependant.” And negative advocate is a term that I use for that type of behavior in the legal process or conflict process, where someone gets emotionally hooked and charged up and fights for a high conflict person in bad ways, fights for all of their distortions of thinking, their intense emotions, their bad behavior. And when I say they’re emotionally hooked, it’s because emotions are contagious and the high intensity emotions of high conflict people are quite contagious.
When people act as negative advocates, it makes resolving the dispute or solving the problem that much more difficult. You have to counteract your client's intense emotion and unrealistic expectations, and that job is made all the more difficult because they have been reinforced by others who supposedly don't have a dog in that fight. So what about my Aunt Pebbles? Aunt Pebbles is what we like to call a positive advocate. Effective positive advocates are rare in most of our personal lives. Here in the Trenches, it's what we aspire to be for our clients. A positive advocate is a person who can hear what you're saying, let you know they understand what you mean, and then carefully and effectively point out 1) facts you may have forgotten; 2) different ways of looking at the facts that you may not have considered; and if you're lucky enough to have my Aunt Pebbles, they also talk to everyone and anyone about everything, and they ask a LOT of questions. They also read things other than what you read, so they have a different pool of information from which to draw. What that means for those lucky enough to have a positive advocate in their lives, is some good reality testing and novel solutions to nagging/annoying/overwhelming problems. Not to mention, they also provide great shoulders on which to cry. This is not the same as a Negative Nancy, who shoots down all of your good ideas and finds fault in everything you do. A positive advocate is just that - positive - and their suggestions are not criticisms. We sometimes tease Aunt Pebs, but we've gotten a lot of good ideas from her, saved ourselves a lot of grief, and learned the right questions to ask. (Plus, she never, ever, says "I told you so.") Positive advocates are not always popular with us when we're in crisis (not you of course, Aunt Pebs - other people), because what we need to hear (reason, sanity and novel solutions) is not what we want to hear (that we're right), and for that reason, most folks don't seek them out when they really should, and turn instead to the negative advocate. I'm lucky enough to have a positive advocate who uses humor and good cheer, but sometimes even I don't want to take to heart what she says. I've learned over the years that sometimes her advice is like castor oil - it tastes bad but it's good for you (by the way, Aunt Pebs is also a fan of castor or fish oil, only pharmaceutical grade, however). I'll bet everyone has a positive advocate in their lives, even if they're not as terrific as my Aunt Pebs. If you're in the Trenches, take a moment and think about the positive advocates in your life. They're there. Seek them out, ask them questions, test your perceptions, hear what they have to say. Your attorney will thank them for it, and so will you.
As you can probably tell from recent posts, we deal with loss a lot here in the Trenches. Lately, that loss has been both professional and personal. A little over a year ago, when Office Testosterone was first diagnosed with cancer, I whipped out my Bucket List and updated it. Then, I saved it on my computer, and......did none of the things on it. I know - human nature. Life gets in the way of all the big things you want to do. Then my father became frail, and Office Testosterone got worse. Still, I did nothing except whip the list out and read it (and maybe add an entry to it every now and again). At last week's collaborative training, one of the learners was a colleague I've known for many years: a hard driving, tough minded career woman who is about my age. I hadn't seen her in a while and commented on it. She told me that she had just come back from a year's sabbatical. That's right, she took a year off from the practice of family law to do her bucket list. She figured that her parents weren't getting any younger, although they were still in good health, nor was she. A lot of items on her list were physical pursuits, like hiking, that she might not be able to do "when she found the time." So, she made the time, she did the things she always wanted to do. She's back now, and has no regrets. Maybe we can't all take a year off to pursue our dreams, but surely there's time in all of our busy schedules to do a few of them on a regular basis. You never know what life will bring: you could be 91 and done everything you always wanted, 79 and die after hitting your head getting out of a pool, or 22 with your life just ahead of you until that cancer diagnosis. For a lot of our clients here in the Trenches, their married life, which they thought would be until death do they part, ended a bit earlier than that and they have to start building their lives again. The point is that we will all have regrets in our lives; there are always unexpected circumstances, and dead ends reached. What's important is that we not let the road not taken, or the bucket list not pursued, be part of that. Sign me up for trapeze school.
I finally remembered that idea for a post. Phew! I was released from chiropractic care stemming from my automobile accident. If you recall, it wasn't a major accident - I hydroplaned into a telephone pole at 20-25 miles per hour. I suffered minor injuries; some whiplash which manifested as an intermittent pain shooting up my head, stuffy ear and sore shoulder. It took me almost four months to the day to recover from that fairly minor trauma. What about our clients here in the Trenches? I don't think anyone would argue that a divorce or a custody dispute is anything other than a Major trauma (note the capital "M"). Yet, the minute the ink is dry on the agreement or the court order, people expect the participants to get over it, to move on with their lives and put the dispute behind them. That attitude isn't confined simply to court actions and auto accidents; I know countless people who have had loved ones die, and six months later, they're told that they need to stop grieving. Why is that? I suspect it is because human suffering makes us all uncomfortable. We don't know what to do, how much and what kind of support to give. Should we simply listen to the fears, be a receptacle for the pain and the tears, or should we make the pain go away? Everyone is different; everyone needs something different in order to heal, and it's our job as fellow humans to find out what that is. We need to put aside our discomfort with grief, pain and loss to help those we love move on. Small auto accident = four months; loss of a dream, of life, of an important relationship = ?
I had an idea for today's blog - yesterday. I didn't write it down, and now that I'm sitting here, no matter how I wrack my brain, I can't remember what it was. It will come to me, probably in the middle of the night, and in which case, I will share. In the meantime, I had a funny thing happen on the way to the hearing yesterday. Not only did Master Eason announce "There's the Collaborative Lady" as I entered the courtroom (we trained him at last year's AOC training), but we spent the time the clerk took typing up his order to talk about collaborative practice, and its uses for lower income folks, as well as in other areas of the law. Who'd have ever thought we'd have that discussion, in a courtroom no less? The other funny thing that happened was that I was appearing with my longstanding client on a child support modification. As we sat in the witness room with her husband and child support enforcement before the hearing, we started talking....to the husband. As we sat there, my collaborative mind kicked in, and I wanted to know more about why he was there, what was happening. He talked, about how much money he had left at the end of the month, how much child support was taking from his check, not only for my client's children, but also his other children. Then he talked about how the deduction for his child support arrears for my client was just killing him, because it was a amount equal to half of his child support payment, on top of everything else. His income hadn't changed enough for a child support modification, but we talked about the arrearage, and agreed (and with my client's OK, suggested to the court), that they reduce the amount they were taking out for arrears by almost half. The funny thing is that cutting the arrears made no difference in what will be withheld from his paycheck, because he doesn't make enough money to withhold any arrears. The important thing is that he felt that we heard and understood his difficulty. Why was that important? Well, because at that point, he reminded everyone about a tax refund intercept that we had discussed the year prior, but about which child support enforcement had done nothing. As a result, my client is potentially getting four months' worth of child support arrears simply because her ex felt someone heard what he had to say. So was I advocating effectively for her yesterday? I'd say so. She's potentially getting a couple of thousand dollars in her pocket that we all would have forgotten about but for my digging deeply with her ex. She's thrilled with what we accomplished, and all for just a few minutes of time and effort.
The pups are very happy I'm back from Annapolis. Mommy is the one who takes them for more walks and gives them their daily treats. It's not that they don't love their Daddy; he's just different than Mommy. The pups behave differently when I'm home. When I'm away, neither of them gets up on the bed to cuddle at night, and they both stay off the couch. When I'm home, they cuddle up on the bed with us all night, and take turns lying between us on the couch (should have bought a larger couch, but who knew I'd have bigger dogs?). When I'm home, they get up early to go out; when I'm away, they sleep until 10 or 11. When I go away, it takes them a bit to get their bearings with just Daddy; and when I come home, it takes them some time to get used to my being home. We recognize it and help them adjust. As you know, my pups reflect what goes on in the Trenches. How many times do we hear parents say that their child doesn't do something at their house that they do with the other parent; or that they do something with them, so of course they must do it with the other parent? Then there's the blame game; that something must be wrong in the other house because the child does or doesn't do X or Y. Well, my pups act very differently with Mommy than with Daddy. They always have. Part of it has to do with the difference in our "parenting" style. Part of it has to do with the differences in the things we do with them and the way we do them. Part of it has to do with what the way they relate to our different personalities. It's pretty normal (kind of like the way your children have wonderful manners at someone else's house but not at home). It's also pretty normal that things are different in each house, that their children have different relationships with each parent, and that each parent is different. What's important is that parents recognize that it's hard for children to transition between their parents for a variety of reasons, neither good nor bad, and that it is both of their jobs to help make that transition easier for them. They chose to separate, not their children, so as easy as they can make the movement between the houses on them, the better. That's what children need - here in the Trenches.
One great thing about doing a collaborative training is that it gives me food for blogging....One of the fishbowls we do in our training is to demonstrate effective and ineffective listening. What we chose to do was demonstrate a conversation between two spouses. One spouse has a hurt shoulder; the other spouse plays "can you top this," by complaining how much worse they feel. Of course, in the second part of the vignette, the other spouse really listens to the complaint of the hurt shoulder and focuses on the speaker. Why am I telling you this? Because both the person playing the spouse and I realized that sometimes we really don't have a lot of empathy for our significant others. The funny thing is, we both realized it at the same time while we were doing the fishbowl. It's not that our partners don't deserve empathy, as much as it is that in the day to day motions of life, sometimes the qualities that made you fall in love with your partner take a back seat to getting through the day. That's when you lose your empathy; it's also when you know you need to work to regain it. My colleague and I were lucky; we realized it at a time in which we weren't in crisis, so we had the ability to refocus on what we like and love about our partners, as opposed to the things about them that annoy us. Unfortunately, a lot of our clients here in the Trenches never realize what's happening until it's too late, and that's too bad.
Another collaborative practice training is over, and another 120 lawyers have been trained here in Maryland. At the end of each of our trainings, we have a reflection circle. Every time we have one, I cry. It's becoming a kind of trade mark. I tell myself I won't, but well, I do. Not every case can or should be resolved collaboratively, but every lawyer should be trained to view each case as they view their collaborative ones. That more and more lawyers are trained in the method gives me hope for the future of justice, and so I cry. Why is that, you may ask? Well, at least here in the Trenches, all of our cases come with a story; our client has part, and their spouse has part. How that story ends has a lot to do with the professionals who help them write the ending. Will it end like a Shakespeare tragedy, with all the characters dead or maimed, or like one of his comedies, in which the characters meet difficulty, misunderstand each other, and then end with a resolution that works for everyone? How the professionals approach the story determines how it ends. If the lawyers approach it as "business as usual" in the traditional litigation sense of the word, then we are set for a Shakespeare tragedy. If, on the other hand, the lawyers approach it with a collaborative mindset, then the stage is set for a Shakespeare comedy, even if a judge needs to make that decision. The reason is that the collaborative lawyer understands that usually it isn't about the money or the house or the children, and they dig deeply to discover the true heart of the matter, the clients' deepest needs, and tailor their representation to meet those needs, whatever form of dispute resolution is chosen. Since I've been trained collaboratively, I'm a more effective lawyer, negotiator, litigator, mediator and collaborator; and that means justice is more likely to be served because all the facts, financial, emotional and otherwise, are addressed, as opposed to a client's position. That's why I cry.
It is, truly, the little things that make a difference. Today was the first day of our Collaborative Training here in Annapolis at the Administrative Office of the Courts. It was a really long and tiring day. On the way back to the hotel, I thought I'd stop at DSW. What could be better than that? Finding the perfect pair of shoes. Then finding out that they were 40% off. Finally, I had a gift card I forgot about, so they were free. All those little things added up to a great experience and a real mood lifter. Let's contrast this to this morning at the training. The first day is always hard; a little slow, but the momentum builds as the training goes on. The microphones weren't working right. Sometimes, they would work, sometimes they didn't. First, they were too loud, then they were too quiet. Kind of like a mosquito buzzing around and around your head, it was a minor thing that became a major annoyance. It colored by view of an otherwise pretty good first day.
All of this made me think about our clients here in the Trenches (I know, doesn't everything? I need a life). Let's multiply those minor annoyances by ten, and you have most of our client's lives. They're in a bad place, and every interaction in their lives feels like that mosquito. Except they're on overload. We're on overload too here in the Trenches, but not in the same way. Sometimes, it's hard for us to remember that it really only takes one small positive experience to make that mosquito stop buzzing for a bit. It doesn't have to be much: a quick phone call to see how they are; a sincere complement; a touch on the shoulder. It is amazing how such little things can make such a big difference. Kind of like finding those shoes.
We're burning the candle at both ends here in the Trenches. We have a lot of client work to keep us busy (we never complain about that!), and this week is the second annual Maryland Administrative Office of the Courts sponsored collaborative training (never complain about that either!). The problem is, between the two of those, an allergy season that never went away, and Mom and Dad, we are a bit overwhelmed. So, what do we do when that happens? Hyperventilate? No, at least not for too long. We get the work done, piece by piece, control our breathing, and plan something pleasurable for the future. What are we planning now? How about the Disney Princess Half Marathon? OK, maybe that's not your thing, but to each his own.